- (1.) THE plaintiff appellant having been compulsorily retired by the Respondent from its service has filed the suit, giving rise to this appeal, for a declaration that the order was illegal and for damages for such unlawful termination. In view of the service of weighty authorities of the Supreme court in Rajasthan Electricity Board (AIR 1967 SC 1867), Sukhdev Singh (AIR 1975 SC 1331), R. D. Shetty v. International Airport Authority (AIR 1979 SC 1628), Ajoy Hasia (AIR 1981 SC 487), Indian Statistical Institute (AIR 1984 SC 363) and other decisions following them, which have expanded the concept of "state" as defined in Article 12 of the Constitution with wide spactacular amplitude, the Respondent, Indian Council of Agricultural research, was to be regarded as "state" for the purpose of that Article. The authority of the Supreme Court decision in Sabhajit Tewari (AIR 1975 sc 1329) holding the Council of Scientific and Industrial Research, a Society incorporated under the Societies Registration Act, not to be a "state" within the meaning of that Article 1. 2 must now be taken to be modified, and watered down to such an extent as to be confined to that case only. But now that we have a clear direct authority of the Supreme Court in P. K. Ramachandra Iyer v. Union of India (AIR 1984 SC 541) categorically ruling Indian Council of Agricultural Research, the Respondent here, to be a "state" within the inclusive definition of Article 12, the matter ned not detain us any longer. In fact, the learned Counsel for the Respondent also has not attempted to urge to the contrary, may be because of that direct decision.
(2.) BUT even though the Indian Council of Agricultural Research is a "state" within the emaning of Article 12 and, as such, for the purpose of the Fundamental Rights in Part II and the Directive Principles in Part iv of the Constitution, it is not yet the law that it can be held to be regarded to be either the "union" or a "state" for the purpose of Article 311 and, therefore, the provisions of the Article are not available for the protection of the holders of posts under the Indian Council of Agricultural Research in case of their removal or dismissal from service. And even otherwise, it appears still to be the law that an order of compulsory retirement simpliciter in accordance with Rules governing the conditions of service, involving no imputation of stigma or other prejudicial consequences, is not a dismissal or removal within the meaning of Article 311, even where the person concerned is the holder of a civil post under the Union or a State. We would accordingly exclude the provisions of article 311 from our consideration in deciding this appeal, and would confine ourselves to the provisions of Rule 56 (j) of the Fundamental Rules which, as admitted by both the parties, govern the conditions of services of the employees of the India Council of Agricultural Research, as they apply to other Central Government employees. Let us quote the relevant portions of the Rule itself, i. e. , Rule 56 (j) of the Fundamental Rules reading as hereunder :- " Notwithstanding anything contained in the Rule, the appropriate authority shall, if it is of the opinion that it is in the public interest to do so, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months' pay or allowances in lieu of such notice. "
(3.) KRISHNA Iyer, J. , speaking far a two Judge Bench of the Supreme court in Baldev Raj v. Union of India (AIR 1981 SC 70 at 71) and referring to these very provisions, declared that "absolute power is anathema under our Constitutional order". But even that apart, the right under the provisions extracted above can not, even though so worded, be absolute in the sense of being unreasonable or arbitrary, as the terms of the provisions make it clear that it can be exercised, not at will, whim or pleasure of the concerned authority, but only when the authority "is of the opinion that it is in the public interest" to retire the Government servant. This formation of the requisite opinion, which has been made the condition precedent for the exercise of the power, would not have been so made, if the power was intended to the that absolute in the sense of being unfettered or unconditional. It is true that in a much later two-Judge Bench decision of the Supreme Court in Brij Mohan v. State of Punjab (AIR 1987 sc 948), there are some observations to the effect that such a Rule "invests absolute right" and "does not lay down any criteria, guidelines for the exercise of power" and these obervations, if read divorced from the context, might give rise to an impression that the said decision regarded such powers to be unguided and unconditional. But that the decision has not intended to declare the law to that effect would be obvious from the observations made immediately thereafter to the effect that "public interest is specified in the Rule, which means power has to be exercised in the public interest only". ;